The Illegality of Sanctuary Cities – A Constitutional Perspective

Some parts of the US Constitution are discussed in the news on a regular basis. Few people, however, ever read the constitution and far fewer understand it. Even the parts that are often discussed are often mis-stated. For example, the Constitution does not state “separation of church and state.” The First Amendment states, “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof;. . .” Over the years this has caused people to come to the conclusion that there must be a separation of church and state. That topic is best saved for another article. I only use it here to point out that few people read and understand the actual language in the Constitution.

Nowhere is that more clear than in the recent development of “sanctuary cities” and now “sanctuary states.” California and a few other liberal states have gone so far as to prosecute state employees who assist the federal government in support of federal laws. All of these sanctuary declarations and prosecutions, however, are entirely unconstitutional.

First, Article I, Section 8.4 grants to Congress the exclusive right to establish a “uniform Rule of Naturalization, . . .” When a city or state creates any immigration-related “rule” that is not by Congress made uniform, it is in violation of the Constitution. Article VI of the Constitution causes more problems for the sanctuaries.

The second section of that article is called the “supremacy clause.” It states, “This Constitution and the Laws of the United States which shall be made in Pursuance thereof… shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, anything in the constitution or laws of any state to the Contrary notwithstanding.” The law journals are full of cases where judges, both federal and state, have held that federal law is superior and trumps (no pun intended) any state law that contradicts it. This alone should cause the state and local laws to the contrary to be void.

But there is more. Section 3 of article VI, states in part, “[T]he Members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by Oath or Affirmation to support this Constitution. . .” This provision requires that all government officials in every state pledge their support for the Constitution as a condition of holding their office or employment.

But there is more. Before the Civil War, it was not clear what would happen if state government officials did not support the Constitution. The 14th Amendment changed that. Section 3 of that Amendment states in part, “No person shall . . . hold any office . . . under any state, who, having previously taken an oath as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies of the same . . .”

As these sections of the Constitution are applied together, they require that all legislative, judicial, and executive officers in every state pledge their support for the Constitution. Once they make the required pledge, they cannot continue to serve in any government post in any state after they have violated their oath.

Argument can be made that openly refusing to follow the Constitution is not the same as insurrection or rebellion. That argument, however, must fail because a continuing pledge to support the Constitution is required. Upon openly defying the Constitution, the pledge is clearly violated and can no longer serve to support the position. Therefore, the person who made the pledge should be removed from office.

Moreover, people who entered this country illegally are by definition criminals and therefore enemies of the state. Giving them sanctuary is the same as giving them comfort and aid. Consequently, any legislator who has voted for sanctuary and any judicial or executive officer of any state who has attempted to enforce that state‘s laws against cooperation with the federal government has violated their oath. Under the Constitution, they should be removed from office.

The Trump Administration is fighting sanctuary cities and states the wrong way. The Attorney General should order the United States Attorneys in all sanctuary districts to file a civil action in federal court to remove all legislators and city and county commissioners who voted for such legislation or ordinances supporting sanctuary status and to remove from office all judges and executive officers (prosecutors, police, city clerks, etc.) who attempted to enforce the sanctuary laws and ordinances. The cost of electing or appointing new officials alone should cause most municipalities to immediately repeal all sanctuary laws. If they do not, a second round of removals should do the trick.

Although they often do not act like it, the Department of Justice is inundated with people who have been to law school. Sooner or later one of them will figure out that all of the sanctuaries are in violation of the Constitution. When they do, municipalities and states that have become self-proclaimed sanctuaries will face considerable costs and every legislator or commissioner who voted for sanctuary will be barred from ever again serving in a government position. Threat of the latter alone will cause most feckless politicians to repeal the laws and beg forgiveness.

Finally, if the Trump administration does not follow this approach, the final sentence of the First Amendment arguably gives every citizen in a sanctuary city or state the right to file a petition asking to have the government officials removed. If it comes to that, both the pro-sanctuary officials and the Trump Administration will look stupid for failing to understand the very Constitution they pledged to support.

Gillum is being investigated by the FBI and he has been the mayor of the city with the highest crime rate three years in a row. It would seem natural for him to not follow the law of the land. However, the coming indictments will teach him a lesson.

Sanctuary cities and states are not in violation of the Constitution nor federal law. The executive branch of the federal government is charged with carrying out federal (immigration) laws. State executive branch officials have no duty to do the same, and in fact no authority to enforce federal laws. States (and local governments) may not actively interfere with federal law enforcement (that’s a federal crime in itself), but the executive branch of the state and of course city and county officials even more so, are not under any legal requirement to carry out the job of federal law enforcement. By declaring themselves “sanctuary” places, cities, states, and counties are not stating federal law enforcement may not enforce laws there–abosolutely ICE, Border Patrol, DHS, ATF, DEA, FBI etc., can all do their job without any impediment from local and state authorities. BUT, federal law enforcement has no authority under any law (including the Constitution) to direct state and local government at any level to carry out the duties specifically and exclusively assigned to the federal executive branch. (For TR readers, law enforcement is a part of the executive branch at both the federal and state levels). So while state and local authorities can choose to “cooperate” there is absolutely no requirement they do so. As Mr. Duchemin knows full well, but many citizens seem to not understand, (with limited exceptions in rare cases of “preemption” like the CWA, CAA, etc.) the federal government is not “in charge of” state and local governments. Ironic–this used to be the rally cry of the GOP.

Your are incorrect. By providing sanctuary the local governments themselves are making a rule, as Mr. DuChemin points out, which is contrary to the constitution. By criminally prosecuting those who voluntarily support the constitution, they are requiring an executive officer to violate his or her oath.

You are so far off base it is sad. I notice you did not cite to a single reference. Everything in the article is correct. In addition to the references in the article. This position is supported by the congressional record and case law.

There is considerable case law and history that proves your position is completely wrong, in addition to the Civil War itself.

State officers cannot “support” the constitution and “the laws of the United States which shall be made in pursuance thereof,” when they adopt a policy contrary to to a federal law regarding a specific topic that is reserved under Article I, Section 8.

A good place to start your research would be to read some of the cases that discuss the exclusive powers of Congress under that Article and Section.

Intelligent, articulate, well-reasoned and supported by references. What the hell is this doing on the internet?
Seriously, thank you. I enjoy articles that are supported by facts and not name calling and finger pointing. Well done, sir.

Lawgirl; you have been schooled. Your reasoning is superficial and convoluted. For example, my supervisor cannot decide which of the big bosses orders to follow. And the Federal Government outranks the state gov, which outranks the county which should outrank the city. The Civil war settled that question years ago.

You are way over your head, Mr. Duchemin. Tell me where the term “sanctuary city” or “sanctuary state” is in Federal, state, or any law. I thought not. There is no legal obligation on the part of local authorities to help the feds with manpower or resources or data to enforce federal law within the jurisdiction of those local authorities. You cannot point out any specific statute or rule or anything to the contrary. And, i imagine you would be whistling a different tune re: Federalism if Hillary was president with a Democratic congress and the Feds were offering money to the cities and states for abortion on demand.